Be Aware – June 2022

Be Aware – June 2022

Legal & HR

This month’s Be Aware looks at recruitment discrimination, dismissing employees for absence/illness, employee harassment, motoring offences when courtesy cars or test drives are provided, and more.

Recruitment and Discrimination

“We are recruiting for a new technician. I have been through the applicants and there are two strong candidates. The most qualified candidate however has said in his application form that he suffered from depression in the past but claimed it doesn’t affect his work at the moment. I don’t want to take the risk if he proves to be unreliable, so I was going to choose the other candidate. I presume that is okay?”

The simple answer is no. The employer in this situation should be aware that discrimination law is very different from unfair dismissal law. The right protection from discrimination applies to job applicants, so the employer can be liable before they have even met the candidate, essentially from when the application arrives through the employer’s door.

The risk in the situation above is that the job applicant could prove that the depression was a “disability” under the Equality Act 2010. To prove this they have to show that the condition has a substantial long term adverse effect on day-to-day activities. The effect of any medical condition on work is not the essential ingredient in determining the issue.

A further problem for employers is that, as a general rule, whether or not someone is disabled for the purposes of the Equality Act is assessed as if they were not taking medication for the condition. With someone with serious depression it follows that a Tribunal does not ask whether or not, when taking any medication or treatment, there is a substantial adverse effect on day-to-day activities, but rather how they would be coping with their medical condition if they were not taking such medication? The result is that a far greater proportion of the population in the UK can argue they are technically disabled in employment law than might be expected.

If the employer rejects the candidate above then the candidate can submit a claim to an Employment Tribunal. To defend such a claim the employer essentially has to show that the decision not to offer the job was not influenced by the disability (provided always the employee can prove they are disabled within the meaning of the Act).

Employers when recruiting should make job offers “blind” to medical information, albeit offers should be made subject to the satisfactory completion of a medical questionnaire. If it later transpires on further investigation that a medical condition is particularly serious and reasonable adjustments cannot be made to the terms of the job to accommodate that condition, then the employer can subsequently withdraw the offer and can raise a potential defence in the Tribunal.

In the situation above the claim may be difficult to defend if there is one very clear strong candidate then the job applicant may be able to prove to a Tribunal that the depression was the real reason the employer acted as it did. Of course in many situations it is more arguable and the fact that someone has a disability should not unduly scare an employer into offering the job if there are more able candidates. Treating all candidates fairly and openly is therefore important, as is laying a good paper trail in recruitment to demonstrate the relative candidate’s strengths and weaknesses, so that the employer can prove that the reason they didn’t offer a job to someone who has a disability has nothing to do with the disability. Although not common, beware that this area of the law is sometimes abused and vexatious litigants can try to bring claims to force employers to pay out, simply by making applications.

Dismissing new employees for absence/illness

“I have recently taken on an employee, about a month ago, but she isn’t proving to be very reliable. She is a receptionist but has already had 5 days off with a variety of medical complaints. What do I do? I don’t want to be unfair to her but I’ve got a business to run and it is very difficult to cope without the receptionist taking the calls?”

Many employers believe that it is more difficult to dismiss an employee who is ill than one who has committed an act of misconduct. Provided the employee has well under 2 years’ service (and note that normal unfair dismissal rights actually apply a week below two years) that is not necessarily the case.

When dealing with employees with under 2 years’ service, an employer is perfectly entitled to dismiss an employee if their illness/absence creates difficulties and is not always necessary to go through the full disciplinary procedure in terms of medical evidence and written warnings before taking that decision.

There are however caveats to that general advice. Absence issues can sometimes give rise to claims, and the most common ‘banana skins’ for employers when dismissing employees with short service who are absent, are as follows:

1. The risk that any absence could be related to a long term condition, so as to satisfy a disability under the Equality Act 2010. To qualify as a disability the condition has to be long term and have a substantial adverse effect on day-to-day activities. It is sometimes possible that (even if they appear to be short term issues) absences are linked to some longer term condition. Clearly if they are coughs, colds or other minor issues that is unlikely.

2. Be careful also that any absences are not related to pregnancy related illness or similar issues, as that can give rise to claims for sex and pregnancy discrimination.

In the scenario described above therefore if the employer had satisfied itself that those risks do not apply then the next step is very much at the employer’s discretion. It could of course be sympathetic, give a warning and try to improve the issues, but if it is too disruptive it could take a view and invite the employee to a meeting to consider dismissal on the grounds of absence.

If the employer decides to proceed, it is usually advisable to lay a basic paper trail, involving a written invite to a hearing to consider dismissal on the grounds of absence, a minuted discussion regarding the issue and a decision letter, ideally with the right of appeal. Although not following that procedure wouldn’t necessarily give rise to claims, by doing so the employer lays the foundation of a defence in the Tribunal, if the employee should try to claim that they were dismissed for any automatically unfair reason (most commonly discrimination, whistle-blowing or asserting statutory rights) for which length of service is not required to bring claims in the Tribunal.

Is an employee’s perception of conduct enough for the conduct to be harassment?

No, according to the case of Ali v Heathrow Express Operating Company Ltd (1) and Redline Assured Security Ltd (2).

The Claimant, worked for Heathrow Express Operating Company Ltd (Heathrow). From time to time Redline Assured Security Ltd (Redline) carried out security checks at Heathrow airport and Heathrow Express stations. One such test in 2017 involved a bag containing a box, electric cables and a piece of paper with the wording “Allahu Akbar” written in Arabic.

The Claimant was a security guard but was not involved in the test. When he received a report about it later, he complained that this conduct amounted to harassment by reference to his religion. It was Heathrow and Redline’s position that whilst the words used were regrettable, the phase had been used in a number of high profile terrorist attacks that year and it was therefore legitimate to include the phase in order to make the package look more suspicious.

After hearing the evidence, the tribunal concluded that neither Redline nor Heathrow’s conduct amounted to direct discrimination or harassment because by using the phrase “Allahu Akbar”, they did not have the intention of associating Islam with terrorism. It was not in all the circumstances reasonable for the Claimant to perceive the conduct as having an effect falling within s26(1)(b) Equality Act 2010 and he should have understood that using this phrase was not seeking to associate Islam with terrorism but was in the context of recent incidents where the phrase had been used.

This view was supported at the Employment Appeal Tribunal where it was concluded that the decision was neither legally perverse nor insufficiently reasoned.

Conclusion

Whilst this is a very fine line, this case does serve as a reminder that just because someone feels that they have been harassed and discriminated against, does not always mean that they have been. However, on a note of caution, this case was decided on a very specific set of facts (not least of which the employers legitimate aims to counter terrorism as an airport and transport hub), the outcome may have been different if sufficient legitimate alternative explanations for the conduct concerned were not available.

Transfer of Undertakings (Protection from Employment) Regulations 2006 with an asset purchase

“We are looking to purchase the trade and assets of another existing business. As we are not interested in purchasing the Company itself, what is our liability to the employees currently employed in that business?”

Although you are only looking to purchase trade and assets, the purchase may still fall under the TUPE Regulations 2006.

The TUPE Regulations are an important part of UK labour law. When they apply can be complicated, but where they apply they protect employees whose business is being transferred to another business. Failure to consider them can lead to significant financial penalties of the businesses concerned.

When do they apply?

A relevant transfer can occur when a business or part of a business (an or undertaking) is transferred from one employer to a new employer as a going concern i.e. there is a transfer of an economic entity which retains its identity after the transfer.

An ‘economic entity’ means an organised group of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary. In deciding whether there has been a relevant business transfer, the crucial question is whether or not there is a transfer of an economic entity which retains its identity after the transfer and is carried on by the transferee. In answering that question, all the factual circumstances will be considered, including:

  • The type of business;
  • Whether tangible assets such as premises, assets and equipment are transferred – although a relevant transfer may still take place even where no property is transferred to the transferee by the transferor;
  • Whether intangible assets such as goodwill and customer lists are transferred;
  • Whether the majority of employees are taken over by the transferee and, if not, the motive of the transferee in not taking them on;
  • The degree of similarity between the activities carried on before and after the transfer; and
  • Whether there has been any break in the performance of the activities.

Whether TUPE applies to a particular business transfer is not a simple question to answer since each case will turn on its own facts and ultimately, it will be a matter for an employment tribunal to decide if there is a disagreement between the parties.

TUPE does not apply to:

  • The transfer of shares in a company. This is because when a company’s shares are sold to new shareholders, there is no transfer of the business – the same company continues to be the employer. In short, for TUPE to apply, the identity of the employer must change.
  • The transfer of empty premises or assets only (for example, the sale of office equipment alone would not be covered, however, the sale of a business as a going concern which includes the equipment would be covered).
  • The situation where a client buys in services from a contractor in connection with a single specific event or task of short-term duration i.e. a one-off contract rather than the two parties entering into an ongoing relationship for the provision of the service. There is no statutory definition of what exactly constitutes ‘short-term duration’.
  • Arrangements between client and contractor which are wholly or mainly for the supply of goods for the client’s use.

If your purchase involves a going concern, then the safer legal approach is to assume TUPE does apply and look to inform and consult in the usual way. If you expect to re-employ the staff then it would be prudent to proceed under TUPE.

Motoring Offences

As with any motoring business, where you provide courtesy cars or test drives there will come a time when the driver has broken the law and you receive a request from the Police for the Drivers Details. What can you expect and how should you respond?

Notice of Intended Prosecution (NIP)

The first notice that you are likely to receive of any issues is Notice of Intended Prosecution.

The purpose of a NIP is to inform a potential defendant that they may be prosecuted for an offence. A NIP must be served on the Driver or registered keeper within 14 days. This can either be done through the post or at the roadside where the vehicle is stopped by a police officer.

A prosecution cannot proceed if the NIP is not provided within 14 days. However, a notice shall be deemed to be valid if it was posted to the last known address, notwithstanding that the notice was returned as undelivered.

Also, small mistakes on the notice will only render it ineffective if it would mislead the potential defendant.

Request for the Name and Address of the Driver

Most, if not all NIPS will be accompanied by a request for the driver’s details. If you are the registered keeper of the vehicle there is a legal requirement to provide the driver’s details. Failure to provide the driver’s details is itself an offence under section 172 of the Road Traffic Act 1988 and this also carried points and a fine. In fact, in most cases the penalty for not providing the Driver’s details are more than the original offence and for most speeding offences is double.

It is strongly advised that the driver’s details are provided.

Does the GDPR/Data Protection Act prevent me from giving the details?

No. Where the information is necessary for compliance with a legal obligation, such as responding to the police, then this will be lawful processing even if the data subject objects.

What if I do not have the details?

Then all you can do is respond honestly. There is a limited defence to not providing the details where you did not know who the driver was and could not have found out with reasonable diligence.

However, this is not an excuse to not keep a record of driver details or ‘forget’ who it was. The courts will as part of any case test such a defence. If the evidence to support your defence is insufficient, then this can be taken into consideration when a court sentences you.

This is also less likely to apply if you are a company as the court will require a relatively robust system of control to be in place and that any failure to keep a record was reasonable. This can be quite a high bar.

In conclusion

It is very important that any NIP or request for information is dealt with promptly. It is important to provide the driver’s details promptly and accurately, or if you were not the registered keeper at the time to provide the true keepers details. Failure to do so is likely to result in a larger fine and more points and can result in personal and company liability.

General Note

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us on 01788 225 908 at any stage for advice and assistance as appropriate.